Unfair Dismissal Exposed: FWC Highlights Procedural Failures and Investigation Flaws

In a recent case in the Fair Work Commission (FWC) involving workplace sexual harassment allegations, the FWC decision emphasised the importance of balancing misconduct with ensuring procedural fairness during dismissals. The case centred on a long-serving employee (38 years service) of a major coal mining company who was dismissed after being accused of sexual harassment. The employee challenged the dismissal, arguing the investigation was flawed, the allegations were largely untrue, and he was not given a proper opportunity to respond to the allegations prior to his termination. 

Sexual Harassment Allegations 

The employee was terminated in March 2024 following complaints from two female contract cleaners, accusing him of making inappropriate remarks and using offensive language. The incidents were alleged to have occurred over three consecutive days earlier that month. An external investigator was brought in to conduct the inquiry, which led to the employee’s dismissal. In response, the employee filed for unfair dismissal. 

Issues with the Investigation 

During the FWC hearing, concerns were raised about the thoroughness and impartiality of the investigation. The Commissioner noted that the investigator maintained regular contact with senior company staff and provided a draft report for the employer’s review before finalising it. Additionally, the investigation failed to interview a key witness; the investigator conducted video-conferencing and phone interviews with the complainants rather than face-to-face meetings and asked leading questions. The investigation, which was completed within seven days, was considered unusually fast by the Commissioner. 

Valid Reason for Dismissal, But… 

Although the FWC determined that some of the employee's actions constituted sexual harassment, it ruled the dismissal unfair due to a lack of procedural fairness. The employee had not been given a "full opportunity" to respond to the accusations before the termination decision was made. 

The Commissioner remarked, "[The employee] has clearly not adapted to the modern workplace. While such comments may have been perceived as jokes decades ago, that is no longer the case. Laws and workplace standards have evolved." 

Despite acknowledging that there was a valid reason for dismissal, the Commissioner stressed, "The lack of procedural fairness rendered the dismissal unfair." As a result, the FWC ordered the employer to pay the employee one week’s wages as compensation, reflecting the time that should have been allotted for a proper response to the allegations. 

Implications of the Case and Lessons for Employers 

This case highlights the significance of procedural fairness in employee dismissals and highlights the need for workers to recognise changing workplace norms. Behaviours or comments that might have once been tolerated may now be seen as inappropriate or even classified as harassment. 

The case also highlights the need for workplace investigations to be properly executed. In so doing employers should consider: 

• Impartiality – is the investigator sufficiently distanced from the participants to make an unbiased decision without influence from either party? 

• Qualifications – has the investigator got the skill, knowledge and experience to conduct a reliable investigation? 

• Articulacy – can the investigator draft a concise and coherent investigation report, explaining the rationale for their findings? 

• Balance - when considering termination of employment, employers should also strike an appropriate balance between being timely and thorough without being rushed. 

Stay Informed and Protected: 

Understanding the importance of procedural fairness and thorough investigations is crucial for all employers. Ensure your HR practices are up to standard to avoid costly and damaging disputes. If you need guidance or support with any HR matter in your workplace, contact Effective Workplace Solutions today. Let our experts help you navigate the complexities of workplace relations and protect your business from unfair dismissal claims. 

Reach out to us now to schedule a consultation and safeguard your organisation's future! 

Greg Arnold 

Disclaimer: This article provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal of other professional advice.